Senate committee debates Indian probate bill

TUESDAY, MAY 6, 2003

Legislation to reform Indian land policies is on the Congressional agenda again this year after failing to pass last session.

The American Indian Probate Reform Act of 2003 is pitched as a way to encourage estate planning and prevent the increased fractionation of Indian lands. Its main sponsors are Sens. Ben Nighthorse Campbell (R-Colo.) and Daniel Inouye (D-Hawaii), the leaders of the Senate Indian Affairs Committee.

Tomorrow, the panel will hear from a slate of representatives on the need to create a unified inheritance code for Indian Country. Indian landowners are currently subject to 33 state probate laws, leading to unequal treatment, according to tribal leaders and Bush administration officials.

Last year, a version of the bill was included in an omnibus package that was approved by the Senate. But the House adjourned without taking up the matter.

To some in Indian Country, that was good news. Several tribes, mostly in the Plains, passed resolutions against it and some inter-tribal organizations like the Indian Land Working Group opposed a controversial provision to create a new status of land called a "passive" trust.

The new version, S.550, includes the same proposal to limit the federal government's trust responsibilities. If enacted, the Department of Interior will not be required to account for revenues generated from land held in passive status. The Bureau of Indian Affairs will not be required to approve most leases on passive land.

The government will still be responsible for probate and any other activities that otherwise apply to Indian lands. Passive land remains free from state taxation and alienation -- unless it is converted to fee status.

Passive trust came out of discussions between tribal attorneys, the Bush administration and the Senate committee. It was considered a compromise between tribes who wanted Congress to adopt expansive definition of "Indian" in order to prevent land from falling out of Indian ownership and the Interior, which opposed increasing its trust responsibilities.

According to Deputy Secretary J. Steven Griles, the department has a hard time managing the 11 million acres of land held in trust for individual Indians. Much of it is fractionated, meaning hundreds of owners share an interest in small plots of land.

A pilot program in Wisconsin resulted in the purchase of 40,000 "undivided" interests, said Griles at a House hearing in March. But during that same time period, an equal number of new interests were created.

"We're getting further behind," he said. "We're not able to keep up."

Probate reform is one way to eliminate fractionated ownership because it encourages Indian landowners to develop wills and plan for their estates. It can make it easier not just on the federal government but on tribes who often deal with "checkerboard" ownership patterns on reservations where land is split between Indians and non-Indians.

But defining who can inherit Indian land was a touchy subject when the bill came up for debate last year. Tribes are worried that a limited definition of "Indian" would hurt lineal descendants who may or may not meet tribal membership criteria but are considered Indian nonetheless.

"It is breaking her heart that she cannot leave her non-enrolled grandchildren any of her property as it would pass out of trust," Maurice Lyons, chairman of the Morongo Band of Mission Indians of California, said of an elder confronted with the dilemma.

The witnesses for tomorrow's hearing include Wayne Nordwall, a regional BIA official; John Berrey, the chairman of the Quapaw Tribe of Oklahoma who sat on the Interior's "as-is" study of trust activities; Cris Stainbrook, executive director of the Indian Land Tenure Foundation; and Austin Nunez, chairman of the Indian Land Working Group.

Get the Bill:
S.550

Relevant Documents:
SCIA Witness List (May 7, 2003)